Koch v. Segler

• Decision Date: 19 January 1960
• Docket Number: No. 30367,30367
• Citation: 331 S.W.2d 126
• Parties: Ervin KOCH (Plaintiff), Respondent, v. Eldridge SEGLER (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 126

331 S.W.2d 126

78 A.L.R.2d 1220

Ervin KOCH (Plaintiff), Respondent, v. Eldridge SEGLER (Defendant), Appellant.

No. 30367.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1960.

Motion for Rehearing or to Transfer to Supreme Court Denied

Feb. 17, 1960.

Frank E. Doyle, St. Louis, and Fletcher P. Gotter, Overland, for appellant.

Leo A. Politte and Charles P. Moll, Washington, for respondent.

DOERNER, Commissioner.

Defendant appeals from an order of the Circuit Court of St. Charles County denying his motion to quash an execution issued against him.

The facts are undisputed. Plaintiff instituted a suit for malicious prosecution against defendant in that court on August 24, 1957 growing out of an arrest and prosecution for felonious assault. The case was tried before a jury on September 19, 1958, resulting in a verdict for plaintiff of actual damages in the sum of $600, for which a judgment was entered. No appeal was taken by either party. Thereafter, on October 1, 1958, defendant filed a voluntary petition in bankruptcy in the United States District Court for the Eastern Division of the Eastern District of Missouri, and was adjudged a bankrupt. In his schedules defendant listed the plaintiff as an unsecured creditor by reason of the foregoing judgment. Notice of the bankruptcy proceedings was given to plaintiff, but whether he appeared therein or filed a claim against the bankrupt estate does not appear from the transcript. On December 1, 1958 the Referee in Bankruptcy of the Federal court made and entered an order of discharge, discharging the defendant from all debts and claims provable under the Bankruptcy Act, '* * * except such debts as are, by said Act, excepted from the operation of a discharge in bankruptcy.' Subsequent to defendant's discharge plaintiff caused an execution to be issued. Defendant filed a motion to quash the execution, which the trial court overruled, and after unsuccessfully moving for a new trial, defendant appealed to this court.

The sole issue in the case is whether the discharge in bankruptcy released the defendant from the judgment obtained in plaintiff's action for malicious prosecution. As the parties agree, the determination of that question depends upon the construction to be made of Title 11 U.S.C.A. Sec. 35, sub. a relating to debts not affected by a discharge. The pertinent part of that section provides:

'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (2) are liabilities for obtaining money or property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another * * *.'

The tenor of defendant's argument is that the judgment was not a liability for willful and malicious injury to the person or property of plaintiff because the foregoing part of the section contemplates only willful and malicious physical injuries to the person or property of another; and that injuries to character, reputation, good name and fame are not injuries to the person. In support of that argument zealous counsel for defendant traces the distinction in common-law actions between trespass and case, which he states remained in effect through our subsequent codes on pleading, Sec. 2, Art. VI, Ch. 128, RSMo 1855, and Sec. 917, RSMo 1939, until the adoption of our present code, in 1943; ¹ and also cites what he contends is a recognition of the distinction between remedies for injury to person, property or character in Art. I, Sec. 14 of the Missouri Constitution of 1945, V.A.M.S.

What we are called upon to construe here, however, is a Federal, not a state statute, and a reference to the decisions of the Federal courts, as well as those of other states, readily reveals that the section under consideration has not been so narrowly construed. Thus, in the early case of Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754, the question presented was whether a judgment obtained against the defendant, for damages arising from the criminal conversation of the defendant with the plaintiff's wife, was released by the defendant's subsequent discharge in bankruptcy, or whether it was excepted by reason of the foregoing clause of the statute. In ruling that the judgment was not discharged that court said (193 U.S. 473, 481, 24 S.Ct. 505, 506):

'We are of opinion that it was not released. We think the authorities show the husband has certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act; because the wife is in law incapable of giving any consent to affect the husband's rights as against the wrongdoer, and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and wilful. A judgment upon such a cause of action is not released by the defendant's discharge in bankruptcy.'

After reviewing the early English and American cases dealing with a husband's action for assault vi et armis, and of trespass on the case, on which it based its decision, the court stated (193 U.S. 473, 485, 24 S.Ct. 505, 508):

'We think it is made clear by these references to a few of the many cases on this subject that the cause of action by the husband is based upon the idea that the act of the defendant is a violation of the marital rights of the husband in the person of his wife, to the exclusion of all others, and so the act of the defendant is an injury to the person and also to the property rights of the husband.'

In holding that a judgment for slander was not released by a discharge in bankruptcy, the court in Sanderson v. Hunt, 116 Ky. 435, 76 S.W. 179, said:

'It is argued for appellant that the injury done by a slander is neither to the person nor to the property of the one about whom it is spoken. At common law the right of personal security consists in a person's legal and uninterrupted enjoyment of his life, of his limbs, his body, his health, and his reputation. Of the 'rights of person,' referred to by Blackstone (Bl. Com. p. 134), their infringement is discussed in part in this language: 'The security of his reputation or good name from the acts of detraction and slander are rights to which every man is entitled by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right.' In volume 2, p. 118, Bl. Com. (Cooley), under the head of 'Injuries Affecting Personal Security,' he says: 'As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their body, their health, or their reputation.' All these, as is each of them, are injuries to the person. The act of Congress must be understood as having used the words in the section quoted with reference to their common law acceptation. Sutherland on Statutory Construction, 289. An injury to one's person may be done in a number of ways. For example, it may be done to some member of his body, it may be to his health, it may be to his sense of feeling, it may be to his state or peace of mind. Any injury done to him that wounds him in any of these parts is essentially a personal injury--that is, an injury to his person; an injury to that which constitutes a part of his person. The law may not allow a recovery for all such injuries, but for such as it does allow a recovery for it may be classed generally as a recovery for a personal injury.'

To the same effect is Tudryck v. Mutch, 320 Mich. 86, 30 N.W.2d 512, 517, certiorari denied 334 U.S. 819, 68 S.Ct. 1083, 92 L.Ed. 1749, where it was said:

'Injuries within the meaning of the exception are not confined to physical damage or destruction.'

And in Remington on Bankruptcy, Vol. 8, Sec. 3335, p. 207, the author states:

"Injuries to the person or property of another' is a phrase broadly construed, the emphasis being on the character of the act as willful and malicious. For instance, as hereinabove brought out in connection with the conversion cases, physical injury or damage to property is not essential to applicability of the exception. Wrongful sale of land which is subject to an unrecorded mortgage can fall within the exception. So can a judgment for libel or slander or for wrongful attachment of property.'

Illustrative of the broad construction which has been given to the phrase 'injuries to the person,' the discharge of a bankrupt has been held not to release him from a judgment for alienation of affections, Leicester v. Hoadley, 66 Kan. 172, 71 P. 318, 65 L.R.A. 523; Allard v. La Plain, 147 Wash. 497, 266 P. 688; Ernst v. Wise, Ohio Com.Pl., 94 N.E.2d 806; for the seduction of a minor daughter, In re Freche, D.C., 109 F. 620; for libel, McDonald v. Brown, 23 R.I. 546, 51 A. 213, 58 L.R.A. 768; Thompson v. Judy, 6 Cir., 169 F. 553; National Surety Co. v. Medlock, 2 Ga.App. 665, 58 S.E. 1131; or for slander, Sanderson v. Hunt, supra; Parker v. Brattan, 120 Md. 428, 87 A. 756; Drake v. Vernon, 26 S.D. 354, 128 N.W. 317.

What, then, of a judgment for malicious prosecution? Both sides cite the only case in Missouri which has touched upon the question, Mason v. Perkins, 180 Mo. 702, 79 S.W. 683, but as may be expected, the parties differ widely in their interpretation of the opinion in that case. That decision involved a suit to determine the interests of the litigants in a certain tract of land. The facts...